Manchester Sawmills Co. v. A. L. Arundel Co.

SOMERVILLE, J. The proper construction of the contract sued on will determine most of the questions presented by the special pleas and demurrers, and also by the instructions refused to defendant. (1) Defendant’s theory of the contract is that the provisions for a free demonstration of the belt life, and that defendant’s acceptance of the goods should be subject to defendant’s approval, so qualified the other provisions of the contract that defendant never became liable until it approved the demonstration as satisfactory, and, further, that defendant was under no obligation to test the satisfactory quality of the goods by trial for 30 [508] days, as a condition precedent to their rejection and return to the seller. (2) This theory would completely destroy the meaning and effect of the preceding provision, which permits the rejection and return of the goods only “after a thorough trial by the purchaser up to or within thirty days from date of delivery.” All the provisions of a contract must be construed together so as to give harmonious operation to each of them, so far as their language will reasonably permit. This is a common sense rule, and is based on the assumption that parties do not intend to say one thing to be immediately contradicted by another. In accordance with this rule, we think the provision that the acceptance of the goods was subject to defendant’s approval can reasonably mean only that they were not bound to keep the goods unless they approved the goods as satisfactory, after the trial expressly provided for in a preceding part of the contract. (3, 4) Very clearly, also, we think that defendant’s retention of the goods, without a thorough trial of their merit, and without notice to plaintiff of its disapproval, after the lapse of the trial period, would work a forfeiture of the right to reject and return. And, of course, the notice of rejection must have been given to some agent of the plaintiff corporation who had actual or apparent authority to receive such notice for the corporation. It results that pleas 2 and 4 were insufficient as answers to the special counts, and the demurrers were properly sustained. (5) Pleas 3 and 8 were also bad, and subject to the demurrers assigned. The mere allegation that the goods were “worthless” is in no sense an answer to the complaint. If they were approved by defendant upon demonstration and trial, or were not disapproved and returned within a reasonable time thereafter, defendant was liable for the stipulated price. By the express provisions of the contract defendant itself was made the sole judge of the merit or worthlessness of the article, and if its judgment was bad it is without recourse upon the seller, in the absence of deceit or misrepresentation. (6, 7) Pleas 5 and 6 deny that any demonstration of belt life was made by plaintiff at Manchester. This was but the general issue as to an essential allegation of the complaint, and required no special plea. Moreover, the undisputed evidence shows that a demonstration was in fact made at defendant’s mill. If plea 6 be treated merely as a counterclaim, it is wholly insufficient, since it [509] shows no liability on the part of plaintiff to pay defendant for the storage of the goods. There was no error in the elimination of these pleas by demurrer. (8) It is obvious that the “demonstration” provided for in the contract was intended to supply the direction for trial use by defendant. Hence the amendment of the several pleas by the added averment that no directions were given defendant by plaintiff adds nothing material, and was, indeed, inconsistent with other averments in pleas 2 and 4. (9, 10) Defendant sought to elicit a conversation between one of its agents and Applebaum, the deceased salesman of plaintiff, in order to show a parol agreement different from the 30-day provision of the writing. Such an agreement was clearly incompetent for any purpose, even if it did not involve a transaction with a deceased agent of plaintiff. For either reason, the evidence was properly excluded. (11) Although plaintiff may have failed to show the performance of all conditions precedent so as to authorize a recovery under counts A and B on the special contract, nevertheless, if defendant kept the goods after disapproval, and they were of any value to it (as the jury might have found under the evidence), plaintiff might have recovered under a common count as for a quantum valebat. This is a well-settled exception to the general rule.invoked by appellant. — Montgomery County v. Pruett, 175 Ala. 391, 57 South. 823. Hence the refusal to charge the jury, “If you believe from the evidence that the plaintiff is not entitled to recover on counts A and B, you should find for the defendant,” was not erroneous. Moreover, the several written instructions given at defendant’s request deny any right of recovery at all unless plaintiff performed the conditions imposed by the special contract. Anderson, C. J., Mayfield and Thomas, JJ., hold also that an instruction in this form may be refused as having a tendency to mislead or confuse the jury. As already stated, the mere fact that the Belt Life was “worthless” — whatever that may mean in this connection — was not decisive of the result under the terms of the contract, and instructions so assuming were properly refused. (12) There was nothing before the jury which required a definition of nominal damages, and such an instruction was refused without error. [510] We find no reversible error in the record, and we think that the meritorious issues were submitted to, and fairly tried and determined by, the jury. Let the judgment be affirmed. Affirmed. Anderson, C. J., and Mayfield and Thomas, JJ., concur.